by Félix Pérez
Neil Gorsuch, nominated by President Trump to serve on the U.S. Supreme Court, has failed to protect the rights of students with disabilities and imposed conditions that make it more difficult for them to assert their rights, according to a new report.
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Gorsuch “has ruled against students with disabilities in numerous cases, and his record, when considered as a whole, shows a lack of regard for the struggles and rights of students with disabilities,” concludes the analysis. Given his record, “the hard-won protections for students with disabilities could be in peril should Judge Gorsuch be confirmed to the Supreme Court,” states the analysis by the National Education Association, which reviews 10 cases in which Gorsuch was involved.
Lily Eskelsen García, who taught students with special needs during her 20-year classroom career in Utah and is president of the National Education Association, said:
It is incomprehensible that Judge Gorsuch has gone out of his way to impose extra legal barriers for students with disabilities rather than helping them to overcome obstacles. In his court decisions, Judge Gorsuch endorsed the lowest of expectations for students with disabilities, which allowed public schools to provide our highest-needs students with the bare minimum educational benefit. We should all be concerned by this troubling trend in Gorsuch’s record.
One of Gorsuch’s most problematic rulings is the 2008 case Thompson R2-J School District v. Luke P., which involved an autistic student with behavioral problems. In Luke’s first school, his teacher created a plan for him to achieve social and emotional skills in the classroom and at home, and she visited Luke’s home to assist his parents in implementing the plan. When Luke’s family moved, his new school made one attempt to ensure he was using his in-school skills at home, but did little else. Ultimately, he regressed at home. A hearing officer, an administrative law judge and a federal district court all found that the regression showed that the school was not providing Luke with a “free appropriate public education.” Gorsuch, however, held that Luke was only entitled to make progress that was slightly above the lowest possible standard.
In another case, A.F. v. Española Public Schools, Gorsuch ruled that a student could not assert her rights under the Americans with Disabilities Act if she had already settled any claims under the Individuals with Disabilities Education Act, or IDEA. His decision denies students the full protections of both statutes even though Congress explicitly said in the statute that it intended for both laws to provide distinct protections to students.
Gorsuch has also come under criticism by the Bazelon Center for Mental Health Law, a national legal-advocacy organization representing people with mental disabilities. Bazelon Center, after reviewing Gorsuch’s record in disability rights cases, says his record “reveals a consistently narrow view of the ADA (Americans with Disabilities Act), IDEA, and other disability rights laws, as well as of constitutional protections for people with disabilities.” The review states, “Judge Gorsuch has almost always voted in favor of school districts over students with disabilities in education cases under the IDEA, the ADA, and the Constitution. A review of his record in this area shows that Judge Gorsuch misunderstands the broad rights the IDEA and other laws provide students with disabilities and their families.” Gorsuch, Bazelon concludes, has failed to hold schools responsible when they segregated students with disabilities in abusive conditions, and his rulings have allowed schools to use force that many consider inappropriate and to isolate students with disabilities.
Gorsuch’s troubling record interpreting and enforcing civil rights protections for people with disabilities brings to mind incidents involving President Trump and Education Secretary Betsy DeVos.
Trump came under fire in November 2015 for mocking a New York Times reporter who suffers from a chronic condition. Trump denied he was ridiculing the reporter and refused to apologize.
DeVos, during her nomination hearing in January, refused to commit to enforce the law for students with disabilities who attend voucher schools and demonstrated she is unfamiliar with the Individual with Disabilities Education Act.
Gorsuch’s nomination hearing begins tomorrow, March 20. It is expected to last four days.